The Sure Thing?

Reconsidering a prediction about same-sex marriage.

By

James Taranto

December 14, 2012

With the U.S. Supreme Court having taken up two cases involving same-sex marriage--we wrote about them Monday--"gay rights advocates are optimistic about winning" the vote of Justice
Anthony Kennedy,
TalkingPointsMemo.com reports. Implicit is the assumption that four other votes are in the bag, so that Kennedy's vote to strike down both the Defense of Marriage Act and California's Proposition 8, and maybe even to declare the traditional definition of marriage unconstitutional, would be deciding:

"I expect Justice Kennedy to vote in favor of marriage equality," said Erwin Chemerinsky, a constitutional law professor at the University of California, Irvine School of Law.

"There have been two decisions in American history expanding rights for gays and lesbians: Romer v. Evans and Lawrence v. Texas. Anthony Kennedy wrote the opinion for the Court in both," Chemerinsky told TPM by email. "He knows where history is going and that he faces the choice between writing the next Plessy v. Ferguson and the next Brown v. Board of Education. He wants to be on the right side of history." . . .

"Justice Kennedy has authored two powerful, eloquent, and compelling rulings," said Evan Wolfson, executive director of Freedom To Marry, "that will be central to the Windsor case, which challenges the 'gay exception' to the way the federal government ordinarily respects lawful marriages for federal purposes, and the Perry case, which seeks to restore the freedom to marry stripped away from gay couples by California's Prop 8."

Back in 2010, this column made essentially the same prediction, and on the same grounds. Now we're not so sure. It seems to us that Kennedy's "powerful, eloquent and compelling" language in these two rulings--as well as Justice
Antonin Scalia's
language in dissent, equally deserving of those adjectives--makes them seem more sweeping than they actually were, especially the first of the two, Romer v. Evans (1996).

Romer was the case that struck down Colorado's Amendment 2, a ballot measure amending the state's constitution to bar laws or policies protecting homosexuals from discrimination. In response to our Monday analysis, reader Jay Pittard writes:

I disagreed with the ruling at the time and I still disagree with Kennedy's ruling on Amendment 2. As I read it, the ruling conflates what Amendment 2 says with something different, which is indeed objectionable. Amendment 2 proscribed granting protected status to homosexuals. Protected status is a form of favorable discrimination for the protected group vis-à-vis other groups or society at large. What Kennedy claimed it did was to deny normal rights of equal protection under the law to homosexuals. Protected status is not the same as equal protection, therefore I believe Kennedy was in error.

I believe Kennedy's error was to conflate a denial of special privilege (which is what Amendment 2 did) with a removal of equal protection under the law, which it did not do. Homosexuals have no more right to special treatment under the law than left-handed people with red hair.

As it turns out, however, in 1997 a federal appeals court drew precisely that distinction in allowing to stand a law similar in many ways to Amendment 2. The following year the Supreme Court let the lower court's ruling stand, as the Cincinnati Enquirer reported at the time:

A 1993 amendment to Cincinnati's charter that prohibits the city from extending protection to gays and lesbians became law Tuesday after the U.S. Supreme Court declined to hear an appeal in the case. . . .

The decision, which comes two years after the Supreme Court struck down a Colorado amendment similar to Cincinnati's amendment, adds confusion to the legal issue over whether governments can ban civil protection based on sexual orientation. . . .

Many thought the wrangling was over on May 20, 1996, when the U.S. Supreme Court ruled in a 6-3 decision that the Colorado law was unconstitutional. That case overturned the state's Amendment 2, which in words almost identical to Issue 3 prohibited protection based on sexual orientation.

The Sixth U.S. Circuit Court of Appeals had upheld Issue 3, as the Cincinnati law was called, before the Supreme Court decided Romer. The high court remanded the Cincinnati case to the Sixth Circuit, instructing it to reconsider the ordinance in light of Romer. It did, and, in October 1997 it upheld the law again. (Issue 3 was repealed by voters in 2005, and the following year the city enacted an antidiscrimination ordinance that covered sexual orientation.)

How could the Sixth Circuit uphold a law "almost identical" to one the high court had so forcefully struck down without provoking an irritated reversal? The answer is that "almost" makes a world of difference. Here is the wording of Amendment 2:

Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.

The City of Cincinnati and its various Boards and Commissions may not enact, adopt, enforce or administer any ordinance, regulation, rule or policy which provides that homosexual, lesbian, or bisexual orientation, status, conduct, or relationship constitutes, entitles, or otherwise provides a person with the basis to have any claim of minority or protected status, quota preference or other preferential treatment.

Both laws barred claims of "minority status," "quota preferences" and "protected status." But Colorado and not Cincinnati went further and barred any "claim of discrimination." As Judge Robert Krupansky explained (citations omitted):

The language of the Cincinnati Charter Amendment, read in its full context, merely prevented homosexuals, as homosexuals, from obtaining special privileges and preferences. . . . In stark contrast, Colorado Amendment 2's far broader language could be construed to exclude homosexuals from the protection of every Colorado state law, including laws generally applicable to all other Coloradans, thus rendering gay people without recourse to any state authority at any level of government for any type of victimization or abuse which they might suffer by either private and public actors.

Whereas Colorado Amendment 2 ominously threatened to reduce an entire segment of the state's population to the status of virtual non-citizens (or even non-persons) without legal rights under any and every type of state law, the Cincinnati Charter Amendment had no such sweeping and conscience-shocking effect, because (1) it applied only at the lowest (municipal) level of government and thus could not dispossess gay Cincinnatians of any rights derived from any higher level of state law and enforced by a superior apparatus of state government, and (2) its narrow, restrictive language could not be construed to deprive homosexuals of all legal protections even under municipal law, but instead eliminated only "special class status" and "preferential treatment" for gays as gays under Cincinnati ordinances and policies, leaving untouched the application, to gay citizens, of any and all legal rights generally accorded by the municipal government to all persons as persons.

By declining to hear the appeal, the Supreme Court allowed the ruling to stand. But as Justice
John Paul Stevens
was at pains to explain: "The Court's action today should not be interpreted . . . as an expression of its views about the underlying issues that the parties have debated at length." Stevens was joined in his brief opinion by
Justices David Souter
and Ruth Bader Ginsburg--but not by Kennedy, who was silent.

ENLARGE

Justice Kennedy in 1996
Associated Press

Stevens cited differences of opinion over the construction of the law--whether it "merely removed . . . special protection," as the Sixth Circuit contended, or "bars antidiscrimination protections," as gay-rights activists contended. But if a majority of the court (read Justice Kennedy) thought it unconstitutional to do the former, that would have militated strongly in favor of accepting the appeal.

To the extent that the court's conclusion in Romer hinged on Amendment 2's overreach in barring any claim of discrimination, it was a narrow ruling. And while it obviously would be consistent with a holding that the Equal Protection Clause requires states to mandate same-sex marriage, the latter is far from a necessary consequence of the former.

As for Lawrence v. Texas, the 2003 case that struck down state laws criminalizing homosexual sodomy, it isn't clear that it applies here at all. The TPM piece asserts that "Kennedy's Lawrence and Romer opinions both relied on the Constitution's guarantee of equal protection under the law," but that's inaccurate. The appellants in Lawrence raised an equal-protection claim, which Kennedy said "is a tenable argument," but he and the majority declined to address it. Instead they struck down the Texas law as a violation of the right to privacy, thereby reversing 1986's Bowers v. Hardwick.

In a concurring opinion, Justice Sandra Day O'Connor endorsed the equal-protection argument instead of the privacy one. Having been in the majority in Bowers, she thereby finessed the two cases' divergent outcomes by framing them in terms of different legal questions. But she also weighed in on the marriage question:

That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations--the asserted state interest in this case--other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.

The majority opinion in Lawrence didn't address same-sex marriage except to note that it wasn't at issue in the case. And "preserving the traditional institution of marriage" seems an unpersuasive basis for upholding DOMA, which makes distinctions among people who are legally married.

Kennedy may be as activist and results-oriented (on this matter, anyway) as Erwin Chemerinsky thinks. His moralizing rhetoric in Romer and Lawrence certainly has led us to think so. But there's nothing in the legal logic of those cases that makes a constitutional right to same-sex marriage inexorable.

There's No 'I' in 'Foggy Bottom' "On Thursday I asked that President Obama no longer consider me for the job of secretary of state. I made this decision because it is the right step for this country I love. I have never shied away from a fight for a cause I believe in. But, as it became clear that my potential nomination would spark an enduring partisan battle, I concluded that it would be wrong to allow this debate to continue distracting from urgent national priorities. . . . I have never sought in any way, shape or form to mislead the American people. . . . I grew up in Washington, D.C., and I've seen plenty of battles over politics and policy. . . . I concluded this distraction has to stop. . . . I've devoted my life to serving the United States and trying to mend our imperfect world. That's where I want to focus my efforts. . . . I deeply respect Congress's role in our system of government. . . . Finally, I have a great job. . . . I'm proud that President Obama has restored our global stature. . . . I'm equally proud of the many successes of my tremendous team at the U.S. Mission to the United Nations."--"Why I Made the Right Call," Susan Rice, Washington Post, Dec. 14

If His Condition Improves Sufficiently, Doctors Will Pronounce Him Dead "Venezuelan President Hugo Chávez's cancer is most likely terminal given the disease's recurrences, and while the president may bounce back for periods, his health is increasingly at risk, say several leading cancer specialists not involved in the treatment."--The Wall Street Journal, Dec. 14

First World Problems "Susan Schwartz already drives a Prius and has solar panels on her home. But the 69-year-old Berkeley woman still doesn't think she's doing enough to stop global warming."--San Francisco Chronicle, Dec. 13

Metaphor Alert "President Obama has just days to decide, or reveal, whether he will be Santa Claus or the Grinch as an anxious nation speeds past our Christmas of crisis toward the fiscal cliff."--A.B. Stoddard, TheHill.com, Dec. 12

Other Than That, the Story Was Accurate "Please be advised that a November 25 article reporting that Instantcheckmate.com's advertising relies on racial profiling has been withdrawn. The story, 'Professor finds profiling in ads for personal data website,' contains errors. The headline of the article and the article itself incorrectly assert that Harvard Professor Latanya Sweeney's research showed that Instantcheckmate.com, an online background research website, had engaged in racial profiling in its advertisements. Sweeney says the preliminary results of the research found 'significant discrimination' in Instantcheckmate.com's online ad search results, but were insufficient for the article's assertion of deliberate racial profiling by Instant Checkmate. Her research is ongoing. Instant Checkmate denies any such activity, which it describes as being at odds with the company's values. The company says further that it hasn't seen Sweeney's research."--Reuters, Dec. 13

Johnson is really sorry for using the word "midget" yesterday when describing the Michigan labor union situation.

In a somewhat verbose apology speech on the House floor this afternoon, the Georgia-based congressman apologized for rhetorically asking yesterday: "What happens when you put a giant with a midget in a cage fight?"

"You know, everybody knows what the 'N-word' is," Johnson said on the House floor. "We don't say the 'N-word,' we refer to that word as the 'N-word.' I had never heard of the 'M-word.' " In a section Mediaite doesn't transcribe, he slips and says "midget--excuse me, the 'M-word." Then he defines the term:

When we say little people, I'm not talking about the Helmsley little people; I'm not talking about the 47%; I'm not talking about the takers instead of the makers as some would describe them; I'm not talking about the middle class, working people, poor people, working poor people--that's not what is meant by the little people term. It really refers to a medical condition, dwarfism is the name of that medical condition, and sometimes I guess one can even say abnormally small people, abnormally small people which to me is--I like that term better than dwarfism.

He concluded: "The analogy that I used--even though it used the wrong wording, it was a great analogy in my personal opinion."

So he should have said: "What happens when you put a giant with an abnormally small person in a cage fight?" We're not sure that's much better, but it takes a big man to admit a mistake.

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